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The British Institute of International and Comparative Law (BIICL) hosted a roundtable discussion in London with the participation of Supreme Court Judges Olena Kibenko, Ivan Mishchenko and Kostiantyn Pilkov, President of BIICL and President of the Supreme Court of the United Kingdom (2012-2017) Lord David Neuberger, Lord Chancellor and Secretary of State for Justice of the United Kingdom Alex Chalk, Member of Parliament for the United Kingdom, Minister of State (Minister for Europe) at the Foreign, Commonwealth and Development Office Nusrat Ghani, Under-Secretary of State at the Ministry of Justice Mike Freer, and Minister of Justice of Ukraine Denys Maliuska, Chairman of the Legal Policy Committee of the Verkhovna Rada of Ukraine Denys Maslov, Chairman of the Committee on Law Enforcement of the Verkhovna Rada of Ukraine Serhii Ionushas, leading lawyers and politicians from Ukraine and the UK.
Participants discussed the report "Unlocking Investment in Ukraine", prepared by BIICL researchers in cooperation with the UK Ministry of Justice (https://www.biicl.org/documents/12221_final_public_report.pdf).
The project is part of the Ministry's initiative to establish a dialogue between justice stakeholders in Ukraine and the UK, between the two governments, to promote the capacity of the Ukrainian judiciary to resolve commercial disputes and to implement best international practices in international dispute resolution.
The report identifies benefits, options, recommendations and best practices for improving dispute resolution mechanisms to encourage, support and protect commercial investment in Ukraine by strengthening dispute resolution capabilities for investors.
Furthermore, the document presents the findings of a survey conducted among stakeholders in international business and the judiciary, as well as experts on the challenges currently facing the Ukrainian legal and judicial systems. The report's recommendations include a number of innovative models, such as new autonomous financial courts and/or arbitration centres, using a variety of tools, including foreign judges and arbitrators, legislation and language, and digitisation.
Opening the roundtable, Lord David Neuberger said: "No one can but be impressed by the resilience and commitment of the Ukrainian judiciary as a whole. It continues to provide access to justice despite the danger and destruction caused by the war. As a British citizen and a former judge, I am proud of the important contribution that the UK government and judiciary have made in the form of expert advice and dedicated funding to support the Ukrainian judiciary in many areas. The report "Unlocking Investment in Ukraine" is an important initiative. It is impressive both for its purpose and its analysis. It aims to provide recommendations on how to make Ukraine's national commercial dispute resolution system as efficient and respected as possible, and therefore as friendly as possible to investors and businessmen - both foreign and domestic. As for the analysis, it is evidence-based and carefully considered. The report takes into account the views of judges and potential court users, as well as the benefits and challenges of models in other jurisdictions. From every point of view, this is an important and valuable contribution to the rule of law and a successful economy in Ukraine".
In her presentation, Olena Kibenko analysed the strengths and weaknesses of commercial courts in the context of investment disputes. "Ukrainian commercial courts have demonstrated their ability to resolve highly complex disputes quickly and efficiently, despite all the challenges of wartime," the Supreme Court judge said.
She drew attention to the terms of consideration of cases in 2023, where on average the case was considered by all three instances in 6-7 months, which, together with other figures (the number of appealed decisions, cancellations and rehearings), indicates the high competitiveness of the domestic judicial system. Olena Kibenko also noted that Ukrainian courts are increasingly applying foreign law in dispute resolution, which was previously a feature only of commercial arbitration.
With regard to the low level of foreign language proficiency, which was also mentioned in the report, the speaker pointed out that the Ukrainian courts were being replenished with a new generation of judges who were already fluent in English through competitions, so the situation was gradually improving.
Supreme Court Judge Ivan Mishchenko analysed one of the key issues of the event: what model should Ukraine choose to develop its judicial system and change the paradigm of investors.
"The main thing is to take into account the Ukrainian context, legal culture and individual peculiarities, and this should be the basis for deciding whether Ukraine should create a High Investment Court or resort to more successful models that have been tested by time and experience, such as an international financial centre with an arbitration institution whose jurisdiction will cover its activities. In any case, strengthening the capacity of the commercial court system, reducing the number of disputes and introducing modern IT tools are priorities," the speaker said.
Judge of the Grand Chamber of the Supreme Court Kostiantyn Pilkov focused on the value of preserving the investor's access to arbitration as an alternative tool for resolving disputes, including those related to investments. In his presentation, he used examples from the Supreme Court's case law to demonstrate a clear trend in the development of arbitration-friendly court practice over the past six years.
The judge of the SC Grand Chamber emphasised the necessity to sustain this favourable trend, and that the advancement of arbitration by state courts, founded upon the confidence and credibility of arbitrators, will enhance the investment appeal of Ukraine. The existence of an alternative to state courts will facilitate the development of trust in them, as true trust in the courts is contingent upon the availability of a choice.
Kostiantyn Pilkov also noted that while it is important to provide an alternative in the resolution of private investment disputes, such as arbitration, Ukraine will be in a state of uncertainty regarding the future system of investor-state dispute settlement, as the EU is replacing traditional dispute settlement mechanisms with a new one, which may be embodied in the creation of the Multilateral Investment Court. Ukraine should take this into account when considering the establishment of international judicial institutions to resolve investment disputes with Ukraine as a host country.
During the three-day visit, the Supreme Court judges visited the Supreme Court of the United Kingdom, the London Court of Commerce, and the International Centre for Dispute Resolution. They also met with Bob Neill, Member of the UK Parliament, Chairman of the Justice Select Committee, and had a briefing with the Deputy Directors of HMCTS (Her Majesty's Courts and Tribunals Service).
Olena Kibenko's presentation
Ivan Mishchenko's presentation
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